Citation Nr: 1800092
Decision Date: 01/03/18 Archive Date: 01/19/18
DOCKET NO. 14-12 702 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Portland, Oregon
THE ISSUES
1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for posttraumatic stress disorder (PTSD).
2. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD and depression.
3. Entitlement to service connection for a heart condition, to include as due to herbicide exposure in service and/or as secondary to an acquired psychiatric disorder.
REPRESENTATION
Veteran represented by: Disabled American Veterans
WITNESSES AT HEARING ON APPEAL
Veteran and L. M.
ATTORNEY FOR THE BOARD
J. T. Brant, Counsel
INTRODUCTION
The Veteran served on active duty from June 1970 to January 1972.
These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that denied to reopen entitlement to service connection for PTSD and denied entitlement to service connection for a heart condition.
The Board observes that entitlement to service connection for PTSD was previously denied in a final April 2006 rating decision. Although the RO reopened the claim for entitlement to service connection for PTSD in the March 2014 statement of the case, the Board must first address whether the Veteran has submitted new and material evidence to reopen his claim. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996).
The Board notes that the Veteran has claimed entitlement to service connection for PTSD. His claims file also includes a diagnosis of depression. See February 2017 VA treatment record. The U.S. Court of Appeals for Veterans Claims has held that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Thus, the Board has recharacterized the psychiatric claim on appeal to entitlement to service connection for an acquired psychiatric disorder, to include PTSD and depression.
The issue of entitlement to service connection for a heart condition is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).
FINDINGS OF FACT
1. An unappealed April 2006 rating decision denied the claim of entitlement to service connection for PTSD. The Veteran was notified of that decision, but did not initiate an appeal, and new and material evidence was not received within one year of the notice of that rating decision.
2. Some of the evidence received since April 2006, when considered by itself or in connection with evidence previously assembled, relates to unestablished facts necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim of service connection for PTSD.
3. Resolving reasonable doubt in favor of the Veteran, the medical evidence shows a diagnosis of an acquired psychiatric disorder, to include PTSD and depression, based on a claimed in-service stressor.
CONCLUSIONS OF LAW
1. The April 2006 rating decision, which denied the Veteran's claim of entitlement to service connection for PTSD, is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.156, 20.201, 20.302, 20.1103 (2017).
2. The evidence received since the April 2006 rating decision is new and material, and the claim of entitlement to service connection for PTSD is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017).
3. The criteria for service connection for an acquired psychiatric disorder, to include PTSD and depression, have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Claim to Reopen
In order to reopen a claim which has been denied by a final decision, the claimant must present new and material evidence. 38 U.S.C. § 5108. New evidence means existing evidence not previously submitted to VA. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, the "credibility" of newly presented evidence is to be presumed unless the evidence is inherently incredible or beyond the competence of the witness).
The language of 38 C.F.R. § 3.156(a) creates a low threshold for finding new and material evidence, and views the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." Evidence "raises a reasonable possibility of substantiating the claim," if it would trigger VA's duty to provide an examination in adjudicating a non-final claim. Shade v. Shinseki, 24 Vet. App. 110 (2010).
Historically, the RO previously denied entitlement to service connection for PTSD in a final rating decision dated in April 2006. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156, 20.1103; see also Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). In May 2012, the Veteran filed a claim to reopen entitlement to service connection for PTSD. In an August 2012 rating decision, the RO denied to reopen entitlement to service connection for PTSD. The Veteran has appealed this rating decision.
At the time of the last final rating decision in April 2006, whereby the RO denied service connection for PTSD, the evidence consisted of the Veteran's service treatment records, his military personnel records, VA treatment records dated from January 1973 through May 1973, and the Veteran's lay statements. The service treatment records were silent for complaints of, or treatment for, PTSD. The VA treatment records were also silent for complaints of, or treatment for, PTSD. The Veteran's personnel records revealed that the Veteran served in Vietnam as a Medical Corpsman. They did not reveal any evidence of combat service. The Veteran did not complete and return the PTSD Questionnaire sent to him by the RO.
In its April 2006 rating decision, the RO denied the Veteran's claim of entitlement to service connection for PTSD based on the determination that the medical evidence of record did not show that the Veteran had a confirmed diagnosis of PTSD. The Veteran did not appeal the denial, and it became final.
The additional evidence presented since the last final denial in April 2006 includes a VA examination dated in June 2012, a PTSD stressor statement completed by the Veteran in May 2013, buddy statements regarding the Veteran's PTSD symptoms, the Veteran's November 2016 hearing testimony regarding his in-service stressors and his current PTSD symptoms, and VA mental health treatment records dated in February 2017 revealing diagnoses of PTSD, depression, and alcoholism. The Board concludes that this evidence is new and material because it was not of record at the time of the last final rating decision in April 2006, and it raises a reasonable possibility of substantiating the claim, as it provides a current diagnosis of PTSD.
Accordingly, the Board finds that new and material evidence has been received to reopen the Veteran's previously denied claim of service connection for PTSD.
Service Connection - Acquired Psychiatric Disorder
A veteran is entitled to VA disability compensation if there is disability resulting from personal injury suffered or disease contracted in line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service. 38 U.S.C. § 1110.
Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).
Service connection for PTSD requires medical evidence establishing a diagnosis of the condition, credible supporting evidence that the claimed in-service stressor actually occurred, and a link, established by medical evidence, between the current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f) (2017).
Within the legal framework for evaluating claims of service connection for PTSD, the sufficiency of a stressor is a medical determination, while the occurrence of the stressor is a legal determination. Sizemore v. Principi, 18 Vet. App. 264 (2004).
The Veteran has advanced that he developed PTSD while serving as the only medic in a company in Vietnam that was isolated and demoralized. He reported that during this time, he had to care for soldiers that cut their legs and chest in attempts to self-mutilate. The Veteran also reported that he treated soldiers injured in combat. The Veteran reported that he was undertrained and felt overwhelmed by his medical responsibilities.
First, the Board finds that the weight of the evidence is at least in equipoise as to whether the Veteran has a current diagnosis of an acquired psychiatric disorder, to include PTSD and depression. At the June 2012 VA examination, the VA examiner found that the Veteran did not have a mental disorder that conformed with DSM-IV criteria, to include PTSD. The examiner explained that the Veteran did not describe negative and intrusive thoughts and memories related to events from his time in the military, and he did not endorse symptoms of numbing and avoidance and arousal consistent with PTSD. The examiner noted that the Veteran denied significant mental health concerns. However, the examiner also noted that the Veteran reported drinking alcohol and smoking marijuana frequently. The examiner explained that it may be that the Veteran suffered from underlying symptoms of psychological distress that were covered by his drug use, but noted that this would not be able to be assessed unless the Veteran was clean and sober for a significant period of time. In his November 2016 hearing, the Veteran testified that at examinations he had trouble talking about and admitting his psychiatric problems. In a February 2017 VA treatment record, a clinical psychologist rendered DSM-5 diagnoses of PTSD and depression. Based on the above, and resolving reasonable doubt in favor of the Veteran, the Board finds that the Veteran has current Axis 1 diagnoses of PTSD and depression.
Next, there is credible supporting evidence of a stressor. The Veteran has consistently reported the in-service stressor, detailed above. See, e.g., VA examination dated in June 2012, PTSD Stressor Statement dated in May 2013, hearing transcript dated in November 2016, and VA treatment record dated in February 2017. The record confirms that the Veteran was a medic in Vietnam during the Vietnam War. The Veteran reported that his job as a medic in Vietnam was very stressful. He reported that he helped suicidal soldiers with self-inflicted wounds and soldiers injured in combat. The Board finds the Veteran's account of the claimed in-service stressor to be credible and consistent with the circumstances of his service. 38 U.S.C. § 1154(a) (2012).
Finally, the sufficiency of the stressor has been verified by a competent VA medical professional, along with a nexus between the confirmed in-service stressor and the diagnosed acquired psychiatric disorder. See Sizemore, 18 Vet. App. 264 (2004). In June 2012, a VA examiner confirmed that the Veteran's stressor was adequate to support a diagnosis of PTSD. Moreover, the diagnoses of PTSD and depression by a VA clinical psychologist in the February 2017 VA mental health consultation appeared to be based off the Veteran's reports regarding the in-service stressor of working as a medic in Vietnam and witnessing injuries due to suicide and combat.
Based on the above, the Board finds that the Veteran has a diagnosis of an acquired psychiatric disorder, to include PTSD and depression, based on a claimed in-service stressor. Here, the Veteran is competent to describe his in-service stressor, and his claimed stressor is consistent with the circumstances of his service. Further, resolving reasonable doubt in favor of the Veteran, the Board finds the June 2012 and February 2017 VA medical reports, taken as a whole, to be competent and credible medical evidence that the Veteran's acquired psychiatric disorder, to include his currently diagnosed PTSD and depression, is related to the claimed in-service stressor.
For these reasons, and resolving any reasonable doubt in favor of the Veteran, the Board finds that the criteria for service connection for an acquired psychiatric disorder, to include PTSD and depression, have been met. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.
The Board notes that The General Formula for Rating Mental Disorders provides that all service-connected psychiatric disabilities and symptoms, including PTSD and depressive symptoms, are to be rated together. See 38 C.F.R. § 4.130.
As such, when implementing this Board decision to grant service connection for PTSD and depression, the RO will rate the PTSD together with the depression in order to provide one rating based on all the Veteran's psychiatric impairments.
ORDER
New and material evidence having been received, the claim of entitlement to service connection for PTSD is reopened.
Entitlement to service connection for an acquired psychiatric disorder, to include PTSD and depression, is granted.
REMAND
The Veteran is seeking entitlement to service connection for a heart condition. He has raised two theories of entitlement in support of his claim. First, he contends that his heart condition is due to herbicide exposure in the Vietnam War. The Veteran is presumed to have been exposed to herbicides, as his Department of Defense Form 214 confirms he served in the Republic of Vietnam during the Vietnam War. The Veteran's service treatment records are silent for any complaints, treatment, or diagnoses pertaining to the heart. In 2008, the Veteran was diagnosed with atrial flutter with secondary acute congestive heart failure and left ventricular hypertrophy secondary to hypertension. Although a March 2014 VA examiner indicated that none of the Veteran's diagnosed heart conditions qualified as ischemic heart disease, which would warrant presumptive service connection, the Federal Circuit has determined that the Veteran's Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2725, 2727-29 (1984) does not preclude a veteran from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).
Next, in the November 2016 hearing, the Veteran's representative asserted that the Veteran's diagnosed atrial flutter with associated congestive heart failure condition may be secondary to his now service-connected acquired psychiatric disorder. The Veteran's representative contended that this condition could be caused by alcoholism and binge drinking. The representative noted that the June 2012 VA examination report was very thorough on the amount of marijuana and alcohol intake the Veteran has had in the past. The representative noted further that the Veteran used alcohol and marijuana to self-medicate his psychiatric symptoms. The Board notes that the record contains evidence suggesting self-treatment of psychological symptoms with alcohol and marijuana. See, e.g., February 2017 VA treatment record (Veteran reported that he tried not drinking but felt more depressed and "mean").
There are no etiology opinions of record with respect to the this claim. For the reasons discussed above and under the duty to assist, the Board finds that a VA examination is necessary to determine the nature and etiology of any current heart condition, to include a discussion of whether any diagnosed heart condition is related to the Veteran's herbicide exposure in Vietnam or his service-connected acquired psychiatric disorder.
While on remand, updated treatment records should be obtained.
Accordingly, the case is REMANDED for the following action:
1. Contact the Veteran, and, with his assistance, identify
any outstanding records of pertinent medical treatment from VA or private health care providers. Associate with the claims file all relevant VA treatment records.
If VA attempts to obtain any outstanding records
which are unavailable, the Veteran should be notified
in accordance with 38 C.F.R. § 3.159(e).
2. The AOJ should schedule the Veteran for a VA
examination to determine the nature and etiology of
his claimed heart condition. All necessary tests and
studies should be accomplished and all complaints
and clinical manifestations should be reported in
detail. The entire claims file, including a copy of this
remand, should be reviewed in conjunction with the
above evaluation. The examiner should:
(a) Identify all currently diagnosed heart conditions. Confirm if the Veteran has ischemic heart disease.
(b) Provide an opinion as to whether it is at least as likely as not (50 percent probability) that any diagnosed heart condition had its clinical onset during the Veteran's period of service, or is otherwise related to such period of service, to include herbicide exposure therein.
For the purposes of this opinion, the examiner
should presume that the Veteran was exposed
to herbicides during his service in Vietnam.
(c) Provide an opinion as to whether it is at least as likely as not (50 percent probability) that any diagnosed heart condition, to specifically include the diagnosed atrial flutter, was caused or aggravated (permanently worsened beyond the normal progression) by the service-connected acquired psychiatric disorder.
In formulating the opinion, the examiner should address the Veteran's representative's arguments that the Veteran's diagnosed atrial flutter could be caused by alcoholism and binge drinking, which the Veteran had used in the past to self-medicate his psychiatric symptoms.
A complete rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so.
3. After completing any additional development deemed
necessary, readjudicate the Veteran's claim. If the
benefit sought remains denied, a supplemental
statement of the case should be provided to the
Veteran and his representative after according the
requisite time to respond. The matter should then
be returned to the Board for appropriate appellate
review.
The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012).
______________________________________________
S. HENEKS
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs